Supreme Court Will Rehear Campaign Finance Case

Today the U.S. Supreme Court made a splash by not issuing a ruling as expected in their review of the case Citizens United v. Federal Election Commission. The surprising move could pave the way for what could be a “radical step” in striking down campaign finance regulations as we know, as one good-government group put it. As we wrote about in March when the case was first argued before the high court, at issue is whether an anti-Hillary Clinton film that runs for 90 minutes should be subject to the same regulations as your typical 30-second campaign ad. Congress banned companies, unions and nonprofit issue advocacy organizations from directly spending money from their treasuries on electioneering communications advocating either for or against a specific candidate within 30 days of a primary election and within 60 days of a general election under the 2002 Bipartisan Campaign Reform Act (commonly called “McCain-Feingold,” or its acronym BCRA).

Rather than issuing a judgment on this question today, the Supreme Court instead called for the case to be re-argued in the fall. In doing so, it broadened the scope of the inquiry and asked for additional legal arguments to be made. Both sides will be filing their new opening briefs by Friday, July 24, and the court will hear the case for a second time on Wednesday, September 9, 2009. Specifically, the justices asked Citizens United and the FEC to address whether the court should overturn its 1990 ruling in Austin v. Michigan Chamber of Commerce, which upheld restrictions on independent expenditures by corporations and/or the portion of its 2003 ruling McConnell v. Federal Election Commission, which facially upheld the electioneering communications ban enacted with BCRA.

Citizens United has contended that their film, “Hillary: The Movie,” was wrongfully prohibited by the government, while the FEC has argued the film should be subjected to the same limitations and disclosure requirements as electioneering communications. In Austin, the High Court found that such rules were in the government’s interest to prevent “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.” In the coming months, lawyers for the plaintiffs are expected to maintain that these rules are unconstitutional and that expenditures of this type should instead face a level of scrutiny more similar to those of an individual. Some observers are already predicting that this order today will usher in a sweeping “pro-speech anti-regulation decision” this fall. Other groups, however, are warning that “to reopen this channel of unlimited corporate political expenditures would distort and corrupt our political system.”

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